Matter of Stockwell, Interim Decision Number 3150
| Decision Date | 31 May 1991 |
| Docket Number | A-28541697.,Interim Decision Number 3150 |
| Parties | MATTER OF STOCKWELL. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
BY: Milhollan, Chairman; Dunne and Vacca, Board Members. Concurring Opinion: Heilman, Board Member. Dissenting Opinion: Morris, Board Member.
In a decision dated November 14, 1989, the immigration judge found the respondent deportable as charged but granted his application for adjustment of status to that of a lawful permanent resident under section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255 (1988). The Immigration and Naturalization Service has appealed from the grant of that relief. The appeal will be dismissed.
The respondent is a 46-year-old male native and citizen of the United Kingdom. He last entered the United States at Houston, Texas, on April 3, 1987, as a visitor for pleasure. The respondent married a United States citizen, Deborah Sussman, on November 20, 1987, and was granted permanent resident status on a conditional basis under section 216 of the Act, 8 U.S.C. § 1186a (1988), by virtue of that marriage. The respondent's spouse subsequently filed for divorce, and the marriage terminated on November 28, 1988. The respondent married a second United States citizen, Claudia Holbrook, on July 6 1989. She filed a visa petition on his behalf which the Service approved on September 19, 1989.
On July 14, 1989, the Service issued an Order to Show Cause and Notice of Hearing (Form I-221) against the respondent, charging that he was deportable under section 241(a)(9)(B) of the Act, 8 U.S.C. § 1251(a)(9)(B) (1988), as an alien whose conditional permanent resident status had been terminated.
At deportation proceedings on November 14, 1989, the immigration judge found that the Service had shown by clear, unequivocal, and convincing evidence that the respondent was deportable because his conditional permanent resident status had been terminated on July 11, 1989. He also found that the Service's termination of the respondent's conditional permanent resident status was proper because the respondent's spouse had legally terminated the qualifying marriage. The immigration judge further found that the respondent was not eligible for a "hardship" waiver of the joint petition requirement under section 216(c)(4)(A) of the Act.
The immigration judge then considered the respondent's application for adjustment of status under section 245 of the Act on the basis of his second marriage. He noted the Service position that section 245(d) of the Act bars an alien lawfully admitted for permanent residence on a conditional basis from adjusting his status at any time after admission, even if he applies for adjustment after his conditional resident status has been terminated. He found, however, that the statutory language is ambiguous and that the Service's own regulations clearly support the respondent's claim that the prohibition applies to an alien admitted as a conditional permanent resident only while he currently holds that status. The immigration judge found that because the respondent's conditional permanent resident status had been terminated, he was no longer barred by section 245(d) from adjusting his status. The immigration judge also found that the respondent was the beneficiary of an approved visa petition as the immediate relative of a United States citizen, that he was admissible, and that he merited the exercise of discretion in his favor. The immigration judge therefore granted the respondent's application for adjustment of status.1
The Service contends on appeal that the immigration judge incorrectly interpreted the language of section 245(d). The Service argues that the clear intent of Congress was to exclude both aliens currently holding conditional permanent resident status and those who have had such status terminated from the class of aliens eligible to adjust status under section 245(a) of the Act.
Section 245(a) of the Act permits the Attorney General, in his discretion, to accord lawful permanent resident status to an alien who was inspected and admitted or paroled into this country and who is admissible, is eligible to receive an immigrant visa, and has an immigrant visa immediately available to him at the time his application for adjustment of status is filed.
Certain classes of aliens are barred from adjusting their status under section 245(a). Section 245(d) of the Act provides in pertinent part:
The Attorney General may not adjust ... the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 216.
Section 245(d) was added to the Act by section 2(e) of the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537 (1986) ("IMFA"), as part of a comprehensive statutory scheme to deter immigration-related marriage fraud. See H.R. Rep. No. 906, 99th Cong., 2d Sess. 6, reprinted in 1986 U.S.C.C.A.N. 5978, 5978. Section 216 of the Act, also added as part of the IMFA, was designed to check the validity of marriages and to ensure that aliens could not sidestep the immigration laws by entering into a fraudulent marriage. Id. at 5980.
In promulgating regulations to implement the statutory provisions of the IMFA, the Service provided at 8 C.F.R. § 245.1(b)(12) (1991) that the class of aliens ineligible to adjust status under section 245(a) of the Act includes
[a]ny alien who is already an alien lawfully admitted to the United States for permanent residence on a conditional basis pursuant to section 216 of the Act.
Clearly, Congress intended to bar adjustment of status during the 2-year conditional period to prevent an alien from circumventing the requirements of section 216. Were it not for the bar on adjustment, an alien who acquired conditional permanent residence through marriage could adjust status on another basis during the conditional period and thereby avoid the requirements for removing the conditional basis of his status under section 216. While the statutory language seems to leave open the question of whether the bar extends to an alien whose status as a conditional permanent resident has been terminated, we agree with the immigration judge that the Service's own implementing regulation clearly applies the bar in section 245(d) only to aliens currently holding conditional permanent resident status. Significantly, the Service does not address the regulatory language on appeal, despite the fact that the immigration judge found it to be dispositive. We find that section 245(d) does not prohibit an alien whose conditional permanent resident status has been terminated from adjusting his status under section 245(a) of the Act.
Having found that section 245(d) does not bar the respondent from adjusting his status pursuant to section 245(a) of the Act, we will affirm the immigration judge's order granting the respondent adjustment of status based on his marriage to Ms. Holbrook. We note that the Service has cited no adverse discretionary factors that would weigh against a grant of adjustment in this case. The Service approved a visa petition on the respondent's behalf on September 19, 1989, based on his present marriage. Had there been a failure to demonstrate the bona fides of the respondent's present marriage, the Service could have denied the visa petition on that ground. Likewise, had the Service concluded that the respondent's prior marriage was entered into to evade the immigration laws, the Service could have denied the visa petition under section 204(c) of the Act, 8 U.S.C. § 1154(c) (1988). We find that the immigration judge's decision granting the respondent adjustment of status was a reasonable exercise of discretion.
Accordingly, the Service's appeal from the immigration judge's order granting adjustment of status under section 245(a) of the Act will be dismissed.
In interpreting the language of section 245(d) of the Immigration and Nationality Act, 8 U.S.C. § 1255(d) (1988), we should consider the consequences of a perpetual bar to adjustment of status of a person who has once been granted conditional permanent residence under section 216 of the Act, 8 U.S.C. § 1186a (1988). The category of persons affected by a perpetual bar to adjustment would be large. It could include, among others, the sons and daughters of a conditional permanent resident, or a conditional permanent resident who has through inadvertence lost that status by operation of a statutory provision which automatically divests resident status for failure to file a petition to have the conditional status removed. See sections 216(a)(1) and (c)(2) of the Act, respectively. Persons in these circumstances may well be blameless, and the marriages upon which the conditional permanent resident status was based may be bona fide in every sense.
In addition, the termination of conditional permanent resident status has the effect of rendering the individual deportable under section 241(a)(9)(B) of the Act, 8 U.S.C. § 1251(a)(9)(B) (1988). An otherwise innocent party would thus suffer the double dilemma of being deportable and unable to seek relief from deportation if ...
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